Waters of the United States Are Not What You’d Expect

Client Alert

Brownstein Client Alert, July 30, 2015

The U.S. Environmental Protection Agency and Army Corps of Engineers’ new rule defining “waters of the United States” covered by the Clean Water Act (“CWA”) provides a good example of what can happen when a simple term gets manipulated over time by regulatory agencies and the courts.

For some context, the CWA applies only to “waters of the United States.” You would think this would mean waters that flow through multiple states. If the water is in only one state or is only on your property, it would more accurately be referred to as a “water of California” or “Joe’s water.” But under this new regulation, that little pond on Joe’s property could be a water of the United States.